govinfo:USCOURTS-nynd-1_23-cv-01599-3

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF NEW YORK 
 
VARISCITE NY FOUR, LLC and 
VARISCITE NY FIVE, LLC, 
 
Plaintiffs, 
 
 v. 
 
NEW YORK STATE CANNABIS CONTROL 
BOARD, et al., 
 
Defendants. 
 
 
 
 
 
 
 1:23-cv-01599 (AMN/PJE) 
 
APPEARANCES: OF COUNSEL: 
 
JEFFREY M. JENSEN, PC JEFFREY M. JENSEN, ESQ. 
9903 Santa Monica Boulevard – Suite 890 
Beverly Hills, California 90212 
 
HACKER MURPHY LLP THOMAS J. HIGGS, ESQ. 
28 Second Street 
Troy, New York 12180 
Attorneys for Plaintiffs 
 
HON. LETITIA JAMES BENJAMIN L. LOEFKE, ESQ. 
New York State Attorney General RYAN W. HICKEY, ESQ. 
The Capitol 
Albany, New York 12224 
Attorney for Defendants 
 
Hon. Anne M. Nardacci, United States District Judge: 
 
ORDER 
I. INTRODUCTION 
On December 18, 2023, Plaintiffs Variscite NY Four, LLC and Variscite NY Five, LLC 
(“Plaintiffs”) commenced this action against Defendants New York State Cannabis Control Board, 
New York State Office of Cannabis Management, Tremaine Wright, and Chris Alexander 

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(collectively “Defendants”)1 pursuant to 42 U.S.C. § 1983, alleging that New York’s Adult Use 
Application Program (the “Adult Use Application Program”), which accepted applications for 
adult use retail dispensary cannabis licenses (“Adult Use Licenses”) from October 4, 2023 through 
December 18, 2023, violates the dormant Commerce Clause. Dkt. No. 1.
2 On January 7, 2026, 
Plaintiffs filed a motion to disqualify defense counsel. Dkt. No. 63 (“Motion”). In the event that 
the Court declined to disqualify defense counsel, Plaintiffs asked the Court to certify the question 
for interlocutory appeal to the Second Circuit pursuant to 28 U.S.C. § 1292(b). Id. at 11-
12.
3 Defendants opposed the Motion on January 21, 2026, see Dkt. No. 65, and Plaintiffs replied 
in further support of the Motion on January 23, 2026. Dkt. No. 66. This matter was referred to 
United States Magistrate Judge Paul J. Evangelista, who, on May 7, 2026, issued an Order, denying 
Plaintiffs’ motion to disqualify defense counsel, and a Report-Recommendation, recommending 
that Plaintiffs’ request for certification of the question for interlocutory appeal be denied. Dkt. No. 
75 at 14. Magistrate Judge Evangelista advised that under 28 U.S.C. § 636(b)(1), the parties had 
fourteen days within which to file written objections and that failure to object to the Report-
Recommendation within fourteen days would preclude appellate review. Id. at 14-15. No party 
has filed objections, and the time for filing objections has expired. 
For the reasons set forth below, the Court adopts the Report-Recommendation in its 
entirety. 
 
1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Jessica C. Garcia and Susan 
Filburn have been substituted as Defendants in place of Tremaine Wright and Chris Alexander, 
who were sued solely in their official capacities. See Dkt. No. 75. 
2 The Court presumes the parties’ familiarity with the underlying facts and procedural history of 
this action. 
3 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic 
filing system. 

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II. STANDARD OF REVIEW 
This Court reviews de novo those portions of a magistrate judge’s report-recommendation 
that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223, 
228 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). If no specific objections have been filed, this 
Court reviews a magistrate judge’s report-recommendation for clear error. See Petersen , 2 F. 
Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition). “When 
performing such a ‘clear error’ review, ‘the court need only satisfy itself that there is no clear error 
on the face of the record in order to accept the recommendation.’” Dezarea W. v. Comm’r of Soc. 
Sec., No. 21-cv-1138, 2023 WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023) (quoting Canady v. 
Comm’r of Soc. Sec., No. 17-cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14, 2017)). 
III. DISCUSSION 
Because neither party has filed any objections to the Report-Recommendation, the Court 
reviews the Report-Recommendation for clear error. 
“Discretionary jurisdiction is conferred upon courts of appeals, pursuant to 28 U.S.C. § 
1292(b), to consider interlocutory orders where the district judge is of the opinion that such order 
involves a controlling question of law as to which there is substantial ground for difference of 
opinion and that an immediate appeal from the order may materially advance the ultimate 
termination of the litigation.” United States v. Culbertson, 598 F.3d 40, 45 (2d Cir. 2010) (internal 
quotation marks omitted). However, as Magistrate Judge Evangelista noted, “[d]istrict court 
judges have broad discretion to deny certification even where the statutory criteria are met” and 
“only exceptional circumstances will justify a departure from the basic policy of postponing 
appellate review until after the entry of a final judgment.” Dkt. No. 75 at 10 (quoting DeVittorio 

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v. Hall, No. 07-cv-812, 2008 WL 273981, at *2 (S.D.N.Y. Jan. 29, 2008) (internal quotation marks, 
citations, and alterations omitted)). 
As an initial matter, Magistrate Judge Evangelista found that the Second Circuit has not 
expressly determined whether a magistrate judge has the authority to certify an order for 
interlocutory appeal. Id. at 9 (citing Crown Castle NG E. LLC v. Town of Hempstead, No. 17-cv-
3148, 2019 WL 5188923, at *2 (E.D.N.Y. Oct. 15, 2019)). As such, Magistrate Judge Evangelista 
concluded that the best approach for purposes of th e instant case is to assume that only the 
undersigned has the authority to certify questions for interlocutory appeal. Id. at 9-10 (citing, inter 
alia, Culbertson, 598 F.3d at 45). 
As to whether the question of law is “controlling,” Magistrate Judge Evangelista concluded 
that the issue of attorney disqualification is not controlling because the issue, if reversed on appeal, 
would not terminate the underlying action. Id. at 11 (citing, inter alia, Genentech, Inc. v. Novo 
Nordisk A/S, 907 F. Supp. 97, 99 (S.D.N.Y. 1995) (noting that “[a] question of law is ‘controlling’ 
if ‘reversal of the district court’s order would terminate the action’” (quoting Klinghoffer v. S.N.C. 
Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990))). Additionally, Magistrate Judge Evangelista found 
that the issue of disqualification is also not controlling because it does not impact many cases. Id. 
(citing, inter alia , Multi Juice, S.A. v. Snapple Beverage Corp. , No. 02-cv-4635, 2003 WL 
22000593, at *3 (S.D.N.Y. Aug. 20, 2003) (noting that some courts “have also found that a 
question of law may be ‘controlling if it substantially affects a large number of cases’” (quoting 
Genentech, 907 F. Supp. at 99))). Specifically, Magistrate Judge Evangelista noted that the 
Variscite One case is closed, and the issue of attorney disqualification is fact-specific and does not 
involve conflicting legal standards or new issues of law. Id. at 11-12 (citing, inter alia, Multi 
Juice, 2003 WL 22000593, at *3 (denying motion for leave to file interlocutory appeal, in part, 

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because the court could not find any conflicting case law regarding differing standards for attorney 
disqualification)). 
Regarding whether there is a substantial ground for difference of opinion, Magistrate Judge 
Evangelista found that Plaintiffs have not established a difference of opinion concerning the law 
of disqualification. Id. at 12-13 (citing, inter alia, Forbes v. NAMS Int’l, Inc., No. 07-cv-39, 2007 
WL 2764795, at *4 (N.D.N.Y. Sept. 20, 2007) (denying motion for interlocutory appeal, in part, 
because the court was “not of the opinion that the disqualification motion involves a controlling 
question of law as to which there is substantial ground for difference of opinion” (internal 
quotation marks omitted)); DeVittorio, 2008 WL 273981, at *5 (noting that “[s]ubstantial doubt 
about the law requires more than defendants’ argument that another court would have reached a 
different conclusion when applying the law to the facts of the case”)). 
Lastly, Magistrate Judge Evangelista noted that Plaintiff does not argue that certification 
would materially advance the termination of this litigation. Id. at 13 (citing, inter alia, Multi Juice, 
2003 WL 22000593, at *3 (finding that arguments regarding the avoidance of costs associated 
with retaining new counsel—in the event that a court’s opinion were to be overturned on 
interlocutory appeal—are “entirely unrelated” to the issue of whether an appeal will materially 
advance the ultimate termination of litigation)). 
After considering the parties’ arguments in light of the Second Circuit’s mandate that 
Section 1292(b) certification be granted in only the rarest of cases, Magistrate Judge Evangelista 
concluded that certification of an interlocutory appeal would be inappropriate in this case. Id. at 
14 (citing Verizon New York v. Vill. of Westhampton Beach, No. 11-cv-252, 2014 WL 12843520, 
at *14) (E.D.N.Y. Dec. 22, 2014)). 

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Having reviewed the Report-Recommendation and considered Magistrate Judge 
Evangelista’s findings, the Court finds no clear error in the Report-Recommendation. 
Accordingly, the Court adopts the Report-Recommendation in its entirety. 
IV. CONCLUSION 
Accordingly, the Court hereby 
ORDERS that the Report-Recommendation, Dkt. No. 75, is ADOPTED in its entirety; 
and the Court further 
ORDERS that the Clerk serve a copy of this Orde r on all parties in accordance with the 
Local Rules. 
IT IS SO ORDERED. 
Dated: June 11, 2026 
 Albany, New York 
 
 
 

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